How Evidence Is Recorded

Both halves of that proviso are deliberate and both must be stated. The young witness is protected from confrontation. The accused keeps his right to cross-examine. A screen, a separate room, a video link: the section names no method and leaves the Court to find one that does both.

The Explanation. "Accused" includes a person in relation to whom any proceeding under Chapter IX has been commenced, that is a person in security proceedings for keeping the peace or good behaviour.

Sections 309 to 311: three courts, three records

Section 309, summons cases and certain inquiries. In all summons cases tried before a Magistrate, in all inquiries under sections 164 to 167, which are the land and water dispute inquiries, and in all proceedings under section 491 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court.

The proviso: if he is unable to make the memorandum himself, he shall, after recording the reason of his inability, cause it to be made in writing or from his dictation in open Court.

Sub-section (2): the memorandum is signed by the Magistrate and forms part of the record.

Section 310, warrant cases. The evidence of each witness shall, as his examination proceeds, be taken down in writing either by the Magistrate himself, or by his dictation in open Court, or, where he is unable owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him.

The proviso, new: evidence may also be recorded by audio-video electronic means in the presence of the advocate of the person accused.

Sub-section (2): where the Magistrate causes the evidence to be taken down, he records a certificate that he could not take it down himself, for the reasons in sub-section (1).

Sub-section (3): the evidence is ordinarily taken down in narrative form, but the Magistrate may in his discretion take down any part in question and answer form.

Sub-section (4): signed by the Magistrate and part of the record.

Section 311, Sessions trials. The same scheme, with the presiding Judge in place of the Magistrate: taken down in writing by the Judge himself, by his dictation in open Court, or under his direction and superintendence by an appointed officer; ordinarily narrative, with a discretion to use question and answer; signed by the presiding Judge and part of the record.

Two differences between sections 310 and 311 are worth marking. Section 310 has the audio-video proviso and the certificate of incapacity; section 311 has neither in terms.

Sections 312 to 314: language and interpretation

Section 312, the language of the record. Where evidence is taken down under section 310 or 311:

(a) if the witness gives evidence in the language of the Court, it is taken down in that language; (b) if he gives it in another language, it may, if practicable, be taken down in that language; and if that is not practicable, a true translation in the language of the Court shall be prepared as the examination proceeds, signed by the Magistrate or Judge, and forms part of the record; (c) where it is taken down in another language under clause (b), a true translation in the language of the Court shall be prepared as soon as practicable, signed, and forms part of the record.

The proviso: where the evidence is taken down in English and no party requires a translation into the language of the Court, the Court may dispense with it.

Section 313, reading over. As the evidence of each witness is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his advocate, and shall, if necessary, be corrected.

Sub-section (2): if the witness denies the correctness of any part, the Magistrate or Judge may, instead of correcting it, make a memorandum of the objection and add such remarks as he thinks necessary.

Sub-section (3): if the record is in a language the witness does not understand, it shall be interpreted to him in the language in which he gave it, or one he understands.

Section 314, interpretation for the accused.

(1) Where evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open Court in a language he understands. (2) Where he appears by an advocate and the evidence is in a language other than the language of the Court and not understood by the advocate, it shall be interpreted to the advocate in that language. (3) Where documents are put in for formal proof, it is in the Court's discretion to interpret as much as appears necessary.

Sections 315 to 318

Section 315, demeanour. When a presiding Judge or Magistrate has recorded a witness's evidence, he shall also record such remarks, if any, as he thinks material respecting the demeanour of the witness while under examination.

That is a small provision with a real function. The appellate court cannot see the witness; the trial judge's note that he was evasive, or that he broke down, is the only trace of what the courtroom saw.

Section 316, the record of the examination of the accused. Whenever the accused is examined by a Magistrate or a Court of Session, the whole of the examination, including every question put and every answer given, shall be recorded in full by the Judge or Magistrate himself, or, where he is unable owing to physical or other incapacity, under his direction and superintendence by an appointed officer.

(2) The record shall, if practicable, be in the language in which the accused is examined, or, if not practicable, in the language of the Court.

(3) It shall be shown or read to the accused, or interpreted if he does not understand the language, and he shall be at liberty to explain or add to his answers.

(4) It is then signed by the accused and by the Magistrate or Judge, who certifies under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of what the accused said. The proviso, new: where the accused is in custody and examined through electronic communication, his signature shall be taken within seventy-two hours.

(5) The section does not apply to the examination of an accused in a summary trial.

Section 317, the interpreter. Where a Criminal Court requires the services of an interpreter, he shall be bound to state the true interpretation of the evidence or statement.

Section 318, the High Court. Every High Court may, by general rule, prescribe the manner in which the evidence of witnesses and the examination of the accused shall be taken down in cases before it, and it shall be taken down accordingly.

A worked example

A warrant case is being tried before a Magistrate at Panvel. A witness, Lakshmi, gives evidence in Marathi; the language of the Court is Marathi. The accused is present.

Who writes it down? The Magistrate himself, or by his dictation in open Court, or, if he is physically or otherwise incapacitated, an officer under his direction, in which case he must record a certificate of the reason, section 310(1) and (2).

In what form? Ordinarily narrative, though the Magistrate may take any part in question and answer form, section 310(3).

In what language? Marathi, being the language of the Court and the language she gave it in, section 312(a).

What happens at the end of her evidence? It is read over to her in the presence of the accused and corrected if necessary, section 313(1). She says one sentence is wrong; the Magistrate may, instead of altering it, record a memorandum of her objection and add his remarks, section 313(2).

She was plainly frightened throughout. The Magistrate shall record such remarks as he thinks material respecting her demeanour, section 315.

Change the facts. The next witness gives evidence in Tamil, which the Court's language is not. It may, if practicable, be taken down in Tamil, with a true translation prepared as soon as practicable; if that is not practicable, a translation prepared as the examination proceeds, signed and forming part of the record, section 312(b) and (c).

The accused does not understand Tamil and is present. The evidence shall be interpreted to him in open Court in a language he understands, section 314(1). The interpreter is bound to state the true interpretation, section 317.

The accused is examined. Every question and every answer is recorded in full, section 316(1); the record is shown or read to him, he may explain or add, and he and the Magistrate sign, with the Magistrate's certificate, section 316(3) and (4).

He is in custody and examined by electronic communication. His signature must be taken within seventy-two hours, proviso to section 316(4).

Change the case. It is a summons case. Then the record is a memorandum of the substance of each witness's evidence, section 309, and section 316 does not apply at all if the trial is a summary one, section 316(5).

A different case again. The witness is a girl of sixteen alleging a sexual offence. The Court may take appropriate measures to ensure she is not confronted by the accused, while ensuring his right of cross-examination, proviso to section 308.

Distinctions

What this does NOT mean

Section 308 does not require the accused's physical presence in every case. Where his personal attendance is dispensed with, his advocate's presence suffices, and that presence may be through audio-video electronic means at a notified place.

The proviso to section 308 does not take away cross-examination. It requires the Court to protect the young witness while at the same time ensuring the right of cross-examination.

Section 313(2) does not let a court ignore a witness's objection. It gives the alternative of recording the objection with remarks instead of altering the record.

And section 316 does not apply to a summary trial, by its own sub-section (5).

Quick revision

• 307: the State Government determines the language of each Court other than the High Court.
• 308: all evidence in the presence of the accused, or of his advocate where attendance is dispensed with, including by audio-video electronic means at a notified place. Proviso: a woman under eighteen alleging rape or another sexual offence is not to be confronted by the accused, while preserving cross-examination. "Accused" includes a person in Chapter IX security proceedings.
• 309: memorandum of the substance in summons cases, sections 164 to 167 inquiries, and section 491 proceedings; reasons recorded if the Magistrate cannot make it himself; signed and part of the record.
• 310: warrant cases, evidence taken down; certificate where an officer takes it; narrative ordinarily; audio-video recording permitted in the presence of the accused's advocate; signed.
• 311: Sessions trials, the same scheme with the presiding Judge.
• 312: the language of the record, with translations prepared and signed; English needs no translation if no party requires it.
• 313: evidence read over to the witness in the presence of the accused or his advocate, and corrected; an objection may be recorded instead; interpreted where he does not understand the record.
• 314: interpretation to the accused in open Court, or to his advocate; discretion on documents put for formal proof.
• 315: remarks on demeanour, where material.
• 316: the accused's examination recorded in full, in his language if practicable, shown or read to him with liberty to explain or add, signed by him and certified; signature within seventy-two hours where he is in custody and examined electronically; not applicable to a summary trial.
• 317: the interpreter is bound to state the true interpretation.
• 318: the High Court prescribes its own manner by general rule.

Test yourself

1. State the rule in section 308 and its new proviso. All evidence shall be taken in the presence of the accused, or of his advocate where his personal attendance is dispensed with, including through audio-video electronic means at a notified place. Where the evidence of a woman below eighteen alleging rape or another sexual offence is recorded, the Court may take appropriate measures to ensure she is not confronted by the accused while ensuring his right of cross-examination.

2. How is evidence recorded in a summons case, and how in a warrant case? In a summons case, by a memorandum of the substance of the evidence in the language of the Court, section 309. In a warrant case, by the evidence being taken down in writing as the examination proceeds, ordinarily in narrative form, section 310.

3. What must a Magistrate do if he cannot take down the evidence himself? Have it taken down under his direction and superintendence by an officer of the Court appointed by him, and record a certificate that it could not be taken down by himself for the reasons in section 310(1).

4. What is read over to the witness, and what if he objects? His completed evidence is read over to him in the presence of the accused or his advocate and corrected if necessary; if he denies the correctness of any part, the Court may instead record a memorandum of his objection and add such remarks as it thinks necessary, section 313.

5. How much of the examination of the accused is recorded? The whole of it, including every question put and every answer given, section 316(1). It does not apply to a summary trial.

6. Where the accused is in custody and examined electronically, when must he sign? Within seventy-two hours of the examination, proviso to section 316(4).

7. Why does section 315 exist? Because an appellate court decides on the record and cannot see the witness; the trial judge's remarks on demeanour are the only record of what the courtroom observed.